## Facts

- Wilbur Nussbaum owned a home abutting the thirteenth hole of Plandome Country Club, with a patio near the boundary.
- Between the patio and the thirteenth fairway were approximately 20–30 feet of rough and a natural barrier of trees roughly 45–60 feet high.
- The hole’s proper line of flight from tee to green ran at a substantial angle away from Nussbaum’s property and was not a dogleg.
- On June 30, 1963, Paul Lacopo entered and played the course without permission (as a trespasser) and hit a high, badly “hooked” shot from the thirteenth tee.
- The ball traveled over the rough and trees and struck Nussbaum on his patio.
- Lacopo did not see Nussbaum before or at the time of the shot and did not yell “Fore!”
- Nussbaum asserted this was the first time a ball had ever reached his property from the course.
- Nussbaum sued the club on nuisance and negligent design/operation theories, and sued Lacopo for negligence based on failure to warn.
- At trial, Nussbaum proceeded only on the failure-to-warn theory against Lacopo and did not develop proof that the shot itself was negligently struck; the trial court dismissed the complaint at the close of plaintiff’s proof, and the Appellate Division affirmed.

## Issues

1. Whether the country club could be liable in nuisance or negligence for an adjoining landowner’s injury caused by a single errant shot by a trespassing golfer, given the hole’s layout, natural barriers, and lack of prior similar incidents.
2. Whether a golfer who neither sees nor reasonably should anticipate a person in the ball’s probable zone of danger is negligent for failing to shout “Fore!” after hitting an errant shot.

## Decision

- The Court of Appeals affirmed dismissal for both defendants.
- The club was not liable in nuisance or negligence because the evidence did not show an unreasonably dangerous course layout or inadequate control of unauthorized players, and there was no history indicating balls reached plaintiff’s property.
- Lacopo was not liable because plaintiff did not establish that a warning duty arose under the circumstances; plaintiff’s presence on the patio was not reasonably foreseeable from the tee given the angle of play and substantial natural barriers.
- The plaintiff failed to make out a prima facie case on any theory supported by the record.

## Legal Principles

- A landowner operating a golf course is not liable for an adjoining landowner’s injury from an isolated errant shot absent proof that course design/operation unreasonably created a recurring or foreseeable risk to neighboring property.
- Evidence that a club removes trespassers and does not permit unauthorized play may defeat a claim that the club failed to supervise or control access.
- A golfer’s duty to warn (including by yelling “Fore!”) depends on foreseeability; the duty generally arises when the golfer knows or should know persons are in the probable zone of danger.
- Failure to warn is not negligence where the injured person’s location is far from the normal line of play and the golfer neither sees nor reasonably should anticipate anyone there.
- Nuisance and negligence are distinct theories and must be analyzed separately, even when they arise from the same facts.

## Conclusion

The court affirmed judgment for the defendants because the plaintiff’s proof did not show that the course posed a foreseeable danger to adjacent property or that the club failed to control access, and it did not show that the trespassing golfer had a duty to warn a person whose presence on the patio was not reasonably foreseeable.


Nussbaum v. Lacopo, 265 N.E.2d 762 (N.Y. 1970)